EXHIBIT 1.1
[ ] SHARES
COMMERCIAL VEHICLE GROUP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[ ], 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Underwriters,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. Introductory. Commercial Vehicle Group, Inc., a Delaware corporation
("COMPANY") proposes to issue and sell [ ] shares of its Common Stock, par value
$0.01 per share ("SECURITIES"), and the stockholders listed in Schedule A hereto
("SELLING STOCKHOLDERS") propose severally to sell an aggregate of [ ]
outstanding shares of the Securities (such [ ] shares of Securities being
hereinafter referred to as the "FIRM SECURITIES"), to the Underwriters (as
defined below), for whom Credit Suisse First Boston LLC is acting as
representative (the "REPRESENTATIVE"). The Company also proposes to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
[ ] additional shares of its Securities, and the Selling Stockholders also
propose to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than [ ] additional outstanding shares of the Company's
Securities (with each such Selling Stockholder selling the number of Optional
Securities (as defined below) set forth opposite its name on Schedule A), in
each case as set forth below (such [ ] additional shares being hereinafter
referred to as the "OPTIONAL SECURITIES"). The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES". As part of
the offering contemplated by this Agreement, Credit Suisse First Boston LLC (the
"DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm Securities
purchased by it under this Agreement, up to [ ] shares, for sale to the
Company's directors, officers, employees and other parties associated with the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM").
The Firm Securities to be sold by the Designated Underwriter pursuant to the
Directed Share Program (the "DIRECTED SHARES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Shares not subscribed for by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set
forth in the Prospectus. The Company and the Selling Stockholders hereby agree
with the several Underwriters named in Schedule B hereto ("UNDERWRITERS") as
follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-115708) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has
been declared effective, either (A) an additional registration statement
(the "ADDITIONAL REGISTRATION STATEMENT") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule 462(b)
("RULE 462(b)") under the Act and, if so filed, has become effective upon
filing pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the Offered Securities will all
have been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If the
Company does not propose to amend the initial registration statement or if
an additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared effective
by the Commission or has become effective upon filing pursuant to Rule
462(c) ("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or, if
filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised the
Representative that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised the Representative that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representative
that it proposes to file one, "EFFECTIVE TIME" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part of the
initial registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT".
The form of prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(b)") under the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any
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untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed or will conform,
in all material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof, or
relating to the Selling Stockholders, furnished in writing to the Company
by a Selling Stockholder specifically for use therein.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own or lease its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects (other than transfer restrictions imposed under
applicable securities laws).
(v) The entities listed on Schedule C hereto are the only
subsidiaries of the Company.
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(vi) No subsidiary, other than the subsidiaries indicated as
"significant subsidiaries" on Schedule C hereto, as of December 31, 2003,
was a "significant subsidiary" within the meaning of Regulation S-X under
the Act.
(vii) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Securities.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(ix) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act that have not otherwise been complied with or
waived.
(x) The Securities have been approved for listing, subject to
notice of issuance, on The Nasdaq National Market.
(xi) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), and such as may
be required under state securities laws or rules of the National
Association of Securities Dealers, Inc. (the "NASD").
(xii) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (a) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or (b) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or (c) the charter or by-laws of the
Company or any such subsidiary, other than, in the case of (a) and (b),
conflicts or breaches that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects the enforcement of which would reasonably be
expected to have a Material Adverse Effect; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
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by them and no material default has occurred or is continuing under any
material lease to which the Company or any of its subsidiaries is a party.
(xv) The Company and its subsidiaries possess adequate
certificates, authorizations or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them,
except for such certificates, authorizations or permits the absence of
which, individually or in the aggregate, would not have a Material Adverse
Effect and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvi) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(xvii) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, which individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xix) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and, to the Company's knowledge, no
such actions, suits or proceedings are threatened or contemplated.
(xx) The financial statements, together with related notes,
included in each Registration Statement and the Prospectus present fairly
in all material respects the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in accordance with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the schedules included in each Registration Statement present fairly
the information required to be stated therein.
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(xxi) Each of the Company and its consolidated subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (a) transactions are executed in accordance with
management's general or specific authorizations; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (c) access to assets is permitted only in accordance
with management's general or specific authorization; and (d) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxiii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(xxiv) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(xxv) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (A) The minimum
funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder ("ERISA"), has been satisfied by each "pension
plan" (as defined in Section 3(2) of ERISA) which has been established or
maintained by the Company and/or one or more of its subsidiaries, each
plan which is intended to be qualified under Section 401 of the Code is so
qualified; (B) each of the Company and its subsidiaries has fulfilled its
obligations, if any, under Section 515 of ERISA; (C) neither the Company
nor any of its subsidiaries maintains or is required to contribute to a
"welfare plan" (as defined in Section 3(1) of ERISA) which provides
retiree or other post-employment welfare benefits or insurance coverage
(other than "continuation coverage" (as defined in Section 602 of ERISA));
(D) each pension plan and welfare plan established or maintained by the
Company and/or one or more of its subsidiaries is in compliance with the
currently applicable provisions of ERISA and the Code; and (E) neither the
Company nor any of its subsidiaries has incurred or could reasonably be
expected to incur any withdrawal liability under Section 4201 of ERISA,
any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
(xxvi) There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as
such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations promulgated in connection therewith (the
"XXXXXXXX-XXXXX ACT"), including Section 402 related to loans and Sections
302 and 906 related to certifications, to the extent such sections are
applicable.
(xxvii) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply in all material respects, and any further
amendments or supplements thereto will comply in all material respects,
with any applicable laws or regulations of foreign jurisdictions in which
the Prospectus or any
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preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that (ii)
no authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities law and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(xxviii) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or
type of business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its products.
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities
to be sold by such Selling Stockholder on each Closing Date hereunder the
several Underwriters will acquire valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date.
(ii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the consummation of the
transactions contemplated by this Agreement in connection with the sale of
the Offered Securities sold by such Selling Stockholder, except such as
have been obtained and made under the Act and the Exchange Act and such as
may be required under state securities laws or the rules of the NASD.
(iv) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(v) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus did not include, or will not include, any untrue
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statement of a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will not include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. This paragraph 2(b)(v) applies only to statements in or
omissions from a Registration Statement or the Prospectus that relate to
such Selling Stockholder and are based upon written information furnished
to the Company by such Selling Stockholder specifically for use therein.
(vi) The sale of the Offered Securities by such Selling Stockholder
pursuant hereto is not prompted by any information concerning the Company
or any of its subsidiaries which is not set forth in the Prospectus or any
supplement thereto.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $[ ] per share, that number
of Firm Securities (rounded up or down, as determined by Credit Suisse First
Boston LLC ("CSFB") in its discretion, in order to avoid fractions) obtained by
multiplying Firm Securities in the case of the Company and the number of Firm
Securities set forth opposite the name of such Selling Stockholder in Schedule A
hereto, in the case of a Selling Stockholder, in each case by a fraction the
numerator of which is the number of Firm Securities set forth opposite the name
of such Underwriter in Schedule B hereto and the denominator of which is the
total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders listed on Schedule D-1 (the "CUSTODIAL SELLING
STOCKHOLDERS") hereunder have been placed in custody, for delivery under this
Agreement, under Custody Agreements (the "CUSTODY AGREEMENTS") made with [ ], as
custodian ("CUSTODIAN"). The Selling Stockholders other than the Custodial
Selling Stockholders (the "ONEX SELLING STOCKHOLDERS") have entered into an
irrevocable power of attorney appointing Onex American Holdings II LLC as
attorney-in-fact for each Onex Selling Stockholder, with full power and
authority to act in the name of and for and on behalf of each such Onex Selling
Stockholder with respect to all matters arising in connection with the sale of
Securities by each such Onex Selling Stockholder.
Each Custodial Selling Stockholder agrees that the shares represented by
the certificates held in custody for the Custodial Selling Stockholders under
such Custody Agreements are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Custodial Selling Stockholders for
such custody are to that extent irrevocable, and that the obligations of the
Custodial Selling Stockholders hereunder shall not be terminated by operation of
law, whether by the death of any individual Custodial Selling Stockholder or the
occurrence of any other event, or in the case of a trust, by the death of any
trustee or trustees or the termination of such trust. If any individual
Custodial Selling Stockholder or any such trustee or trustees should die, or if
any other such event should occur, or if any of such trusts should terminate,
before the delivery of the Offered Securities hereunder, certificates for such
Offered Securities shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death or other event or termination.
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The Company, the Custodian and the Onex Selling Stockholders will deliver
the Firm Securities to the Representative for the accounts of the Underwriters,
against payment of the purchase price in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to CSFB
drawn to the order of the Company in the case of [ ] shares of Firm Securities,
the Custodian in the case of [ ] shares of Firm Securities and Onex American
Holdings II LLC in the case of [ ] shares of Firm Securities, at the office of
Cravath, Swaine & Xxxxx LLP, at 10:00 A.M., New York time, on [ ], 2004, or at
such other time not later than seven full business days thereafter as CSFB and
the Company determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Exchange Act, the First Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFB requests and will be made available for
checking and packaging at the office of Cravath, Swaine & Xxxxx LLP at least 24
hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and the
Selling Stockholders from time to time (not to exceed three times) not more than
30 days subsequent to the date of the Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. The Company and the Selling
Stockholders agree, severally and not jointly, to sell to the Underwriters the
respective numbers of Optional Securities obtained by multiplying the number of
Optional Securities specified in such notice by a fraction the numerator of
which is [ ] in the case of the Company and the number of shares set forth
opposite the names of such Selling Stockholders in Schedule A hereto under the
caption "Number of Optional Securities to be Sold" in the case of the Selling
Stockholders and the denominator of which is the total number of Optional
Securities (subject to adjustment by CSFB to eliminate fractions). Such Optional
Securities shall be purchased from the Company and each Selling Stockholder for
the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by CSFB to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time (not to exceed three times) and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by CSFB to
the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased from the Company on each Optional Closing
Date to the Representative for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to CSFB
drawn to the order of the Company with respect to the Optional Securities being
so purchased on such Optional Closing Date, at the office of Cravath, Swaine &
Xxxxx LLP. The Custodian will deliver the Optional Securities held for the
Custodial Selling Stockholders being purchased on each Optional Closing Date to
the Representative for the accounts of the several Underwriters, against payment
of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFB
drawn to the order of the Custodian for the accounts of the Custodial Selling
Stockholders with respect to the Optional Securities being so purchased on such
Optional Closing Date, at the office of Cravath, Swaine & Xxxxx LLP. The Onex
Selling Stockholders will deliver or cause to be delivered the Optional
Securities being purchased from them on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFB drawn to
the order of Onex American Holdings II LLC with respect to the Optional
Securities being so purchased on such Optional Closing Date, at the office of
Cravath, Swaine & Xxxxx LLP. The certificates for
9
the Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFB
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the office of Cravath, Swaine &
Xxxxx LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in accordance with subparagraph
(1) (or, if applicable and if consented to by CSFB, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following the
execution and delivery of this Agreement or (B) the fifteenth business day after
the Effective Date of the Initial Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities under the
Act but the Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement or, if
filed, will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make such
filing at such later date as shall have been consented to by CSFB.
(b) The Company will advise CSFB promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or the
related prospectus or the Initial Registration Statement, the Additional
Registration Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without CSFB's consent; and the Company will also
advise CSFB promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this Agreement)
and of any amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its reasonable
best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFB of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFB's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its securityholders
an earnings statement covering a period of at least 12 months beginning after
the Effective Date of the Initial Registration Statement (or, if later, the
Effective Date of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a)
10
of the Act. For the purpose of the preceding sentence, "AVAILABILITY DATE" means
the 45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "AVAILABILITY DATE"
means the 90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representative copies of each
Registration Statement (four of which will be signed and one of which will
include all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in such
quantities as CSFB reasonably requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so furnished
as soon as available. The Company and the Selling Stockholders will pay the
expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB designates and
will continue such qualifications in effect so long as required for the
distribution; provided, however, that the Company shall not be required to
qualify to do business, consent to service of process or become subject to
taxation in any jurisdiction in which it has not already done so.
(g) During the period of three years hereafter, the Company will furnish
to the Representative and, upon request, to each of the other Underwriters, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to the
Representative (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Exchange Act or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFB may reasonably request.
(h) For the period specified below (the "LOCK-UP PERIOD"), the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, or file with the Commission a registration statement under the
Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFB. The
initial Lock-Up Period will commence on the date of this Agreement and continue
for 180 days after the public offering date set forth on the final prospectus
used to sell the Securities (the "PUBLIC OFFERING DATE") or such earlier date
that CSFB consents to in writing; provided, however, that if (1) during the last
17 days of the initial Lock-Up Period, the Company releases earnings results or
material news or a material event relating to the Company occurs or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the initial Lock-Up Period, then in each case, the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the date of
release of the earnings results or the occurrence of the material news or
material event, as applicable, unless CSFB waives, in writing, such extension.
Any Securities received upon exercise of options granted to the undersigned will
also be subject to this paragraph 5(h). Any Securities acquired in the open
market or in the Directed Share Program, and any Securities sold in the Offering
pursuant to this Agreement, will not be subject to this paragraph 5(h). A
transfer of Securities to a family member, trust or controlled affiliate may be
made, provided the transferee agrees to be bound in writing by the terms of this
paragraph 5(h). In addition, the Company may transfer Securities or securities
convertible into or exchangeable or exercisable for Securities pursuant to a
sale of 100% of the outstanding Securities (including, without limitation, in
connection with a tender offer for such Securities or by way of merger of the
Company with another person) to a third party or group of third parties that are
not affiliates of the Company, provided that the third party or group of third
parties agrees in
11
writing to be bound by the restrictions set forth herein until such time as such
third party or group of third parties has acquired 100% of the outstanding
Securities of the Company.
(i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company and such Selling Stockholder will pay all expenses
incident to the performance of the obligations of the Company and such Selling
Stockholder, as the case may be, under this Agreement; the Company will pay for
any filing fees and other expenses (including fees and disbursements of counsel)
in connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFB designates and the printing of memoranda
relating thereto, for the filing fee incident to the review by the NASD of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters and each
Selling Stockholder will pay for any transfer taxes on the sale by such Selling
Stockholder of the Offered Securities to the Underwriters. Nothing in this
paragraph 5(i) amends or otherwise alters any existing agreement among the
Company and the Selling Stockholders with respect to responsibilities for
expenses in connection with the registration of the Offered Securities.
(j) In connection with the Directed Share Program, the Company will
ensure that the Directed Shares will be restricted to the extent required by the
NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation
for a period of three months following the date of the effectiveness of the
Registration Statement. The Designated Underwriter will notify the Company as to
which Participants will need to be so restricted. The Company will direct the
transfer agent to place stop transfer restrictions upon such securities for such
period of time.
(k) The Company will pay all fees and disbursements of counsel incurred
by the Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy in all material respects of the statements of Company officers made
pursuant to the provisions hereof, to the performance in all material respects
by the Company and the Selling Stockholders of their obligations hereunder and
to the following additional conditions precedent:
(a) The Representative shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Deloitte & Touche LLP confirming that they are independent
certified public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
12
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
100, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in total debt of the
Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there was
any decrease in consolidated total assets, as compared with amounts
shown on the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date of
the latest available income statement read by such accountants, or
to a subsequent specified date not more than three business days
prior to the date of this Agreement, there were any decreases, as
compared with the corresponding period of the previous year, in
consolidated revenue or net operating income in the total or per
share amounts of consolidated net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration
13
Statement is subsequent to such execution and delivery, "REGISTRATION
STATEMENTS" shall mean the Initial Registration Statement and the Additional
Registration Statement as proposed to be filed or as proposed to be amended by
the post-effective amendment to be filed shortly prior to its Effective Time,
and (iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFB. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFB. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including the Representative, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representative, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (v) any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market;
(vi) any banking moratorium declared by U.S. Federal or New York authorities;
(vii) any major disruption of settlements of securities or clearance services in
the United States or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representative shall have received an opinion, dated such
Closing Date, of Xxxxxxxx & Xxxxx LLP, counsel for the Company, substantially in
the form of Exhibit A hereto.
(e) The Representative shall have received an opinion, dated such
Closing Date, of Xxxxxxxx & Xxxxx LLP, counsel for the Selling Stockholders
listed on Schedule D-2, substantially in the form of Exhibit B hereto.
14
(f) The Representative shall have received an opinion, dated such
Closing Date, of Xxxx Xxxxxxx LLP, counsel for the Selling Stockholders listed
on Schedule D-3, substantially in the form of Exhibit C hereto.
(g) The Representative shall have received the opinions contemplated in
the Power of Attorney executed and delivered by each Selling Stockholder other
than those listed on Schedule D-2 hereto.
(h) The Representative shall have received from Cravath, Swaine & Xxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration Statements,
the Prospectus and other related matters as the Representative may require, and
the Selling Stockholders and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Representative shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(j) The Representative shall have received a letter, dated such Closing
Date, of Deloitte & Touche LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the purposes
of this subsection.
(k) The Representative shall have received a certificate, dated such
Closing Date, from Xxxx X. Xxxxx, Chief Financial Officer of the Company,
substantially in the form of Exhibit D.
(l) On or prior to the date of this Agreement, the Representative shall
have received lock-up letters from each of the executive officers and directors
of the Company and each existing stockholder of the Company substantially in the
form of Exhibit E.
(m) The Custodian will deliver to CSFB a letter stating that they will
deliver to each Custodial Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by the
United States Treasury Department regulations in lieu thereof) on or before
January 31 of the year following the date of this Agreement.
The Selling Stockholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
15
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with (a) written information furnished to the Company by any
Underwriter through the Representative specifically for use therein or (b)
written information furnished to the Company by the Selling Stockholders
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in subsection (c) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(a) Each Selling Stockholder, severally and not jointly will indemnify
and hold harmless each Underwriter, its partners, members, directors and
officers and each person who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder specifically for use therein, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
16
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
fourth, seventh, fifteenth, sixteenth and seventeenth paragraphs, and the last
two sentences in the eighth paragraph under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section or
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above or Section 9, notify the indemnifying
party of the commencement thereof in writing; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under subsection (a), (b) or (c) above or Section 9 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a), (b) or (c) above or
Section 9. In case any such action is brought against any indemnified party and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section or Section 9, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to the
last paragraph in Section 7 (a) hereof in respect of such action or proceeding,
then in addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm (in addition to any local counsel) for the
Designated Underwriter for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control the Designated Underwriter within the meaning of either Section 15
of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company or such Selling Stockholder on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company or such Selling Stockholder on
the one hand and the Underwriters on the other in connection with the statements
or
17
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company or such Selling Stockholder on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
or such Selling Stockholder bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no Selling
Stockholder shall be required to contribute an amount in excess of the net
proceeds from the offering actually received by such Selling Stockholder under
this Agreement or to contribute any amount in respect of losses, claims, damages
or liabilities that it would not be obligated to indemnify under Section 7(b).
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under
this Section or Section 9 shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as hereinafter defined) within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
(f) The aggregate liability of each Selling Stockholder under the
indemnity and contribution agreements contained in this Section 7 shall be
limited to an amount equal to the net proceeds from the offering of the
Securities provided hereunder actually received by such Selling Stockholder
hereunder.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFB, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 10 (provided
18
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Qualified Independent Underwriter. The Company hereby confirms that
at its request CSFB has without compensation acted as "qualified independent
underwriter" (in such capacity, the "QIU") within the meaning of Rule 2710 of
the Conduct Rules of the National Association of Securities Dealers, Inc. in
connection with the offering of the Offered Securities. The Company and the
Selling Stockholders will severally and not jointly indemnify and hold harmless
the QIU against any losses, claims, damages or liabilities, joint or several, to
which the QIU may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon the QIU's acting (or alleged failing to act) as such
"qualified independent underwriter" and will reimburse the QIU for any legal or
other expenses reasonably incurred by the QIU in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
several Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representative at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or faxed and confirmed to it at Commercial Vehicle Group, Inc., 0000
Xxxx Xxxxxx Xxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx Xxxx, President and
Chief Executive Officer, or, if sent to the Selling Stockholders or any of them,
will be mailed, delivered or faxed and confirmed to each of them at its
respective address set forth on Schedule A hereto; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
13. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters. [ ] will act for the Custodial Selling Stockholders
in connection with such transactions, and any action under or in respect of this
Agreement taken by [ ] will be binding upon all the Custodial Selling
Stockholders. Onex American Holdings II LLC will act for the Onex
19
Selling Stockholders in connection with such transactions, and any action under
or in respect of this Agreement taken by Onex American Holdings II LLC will be
binding upon all the Onex Selling Stockholders.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
20
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
COMMERCIAL VEHICLE GROUP, INC.,
By______________________________________
Name:
Title:
ONEX AMERICAN HOLDINGS II LLC,
By______________________________________
Name:
Title:
XXXXXXX EXECUTIVE INVESTCO LLC,
By______________________________________
Name:
Title:
CVS EXECUTIVE INVESTCO LLC,
By______________________________________
Name:
Title:
ONEX DHC LLC,
By______________________________________
Name:
Title:
TRIM SYSTEMS EXECUTIVE INVESTCO LLC,
By______________________________________
Name:
Title:
21
TRIM SYSTEMS EXECUTIVE INVESTCO II LLC,
By______________________________________
Name:
Title:
XXXXXXX PARTNERS LP,
By______________________________________
Name:
Title:
1170821 ONTARIO INC.,
By______________________________________
Name:
Title:
1170809 ONTARIO INC.,
By______________________________________
Name:
Title:
1170812 ONTARIO INC.,
By______________________________________
Name:
Title:
KYZALEA COMPANY,
By______________________________________
Name:
Title:
1170819 ONTARIO INC.,
By______________________________________
Name:
Title:
22
1170698 ONTARIO INC.,
By______________________________________
Name:
Title:
1301449 ONTARIO INC.,
By______________________________________
Name:
Title:
1352536 ONTARIO INC.
By______________________________________
Name:
Title:
1376653 ONTARIO INC.,
By______________________________________
Name:
Title:
1352537 ONTARIO INC.,
By______________________________________
Name:
Title:
XXX XXXXXXXXX,
By______________________________________
Name:
Title:
3-G INVESTMENTS LIMITED,
By______________________________________
Name:
Title:
23
XXXXX XXXXX,
By______________________________________
Name:
Title:
XXXXX XXXX,
By______________________________________
Name:
Title:
J.W.E. XXXXX,
By______________________________________
Name:
Title:
XXXXXX XXXXXXXX,
By______________________________________
Name:
Title:
1299039 ONTARIO INC.,
By______________________________________
Name:
Title:
2668921 MANITOBA LTD.,
By______________________________________
Name:
Title:
ONEX ADVISOR III LLC,
By______________________________________
Name:
Title:
24
CVS PARTNERS, LP,
By______________________________________
Name:
Title:
3062601 NOVA SCOTIA COMPANY,
By______________________________________
Name:
Title:
HIDDEN CREEK INDUSTRIES,
By______________________________________
Name:
Title:
AMON CANADIAN INVESTMENTS LTD.,
By______________________________________
Name:
Title:
MHON CANADIAN INVESTMENTS LTD.,
By______________________________________
Name:
Title:
XXXXX CAPITAL PARTNERS III L.P.,
By______________________________________
Name:
Title:
XXXXX CAPITAL PARTNERS II L.P.,
By______________________________________
Name:
Title:
25
BCP III AFFILIATES FUND L.P.,
By______________________________________
Name:
Title:
BCP III SPECIAL AFFILIATES L.P.,
By______________________________________
Name:
Title:
BCP II AFFILIATES FUND L.P.,
By______________________________________
Name:
Title:
NORWEST EQUITY PARTNERS VII L.P.,
By______________________________________
Name:
Title:
XXXXXXX X. XXXXX,
By______________________________________
Name:
Title:
XXXXX X. XXXX,
By______________________________________
Name:
Title:
X.X. XXXXXXX,
By______________________________________
Name:
Title:
26
XXXXXX X. XXXXXX,
By______________________________________
Name:
Title:
XXXX X. XXXXXX,
By______________________________________
Name:
Title:
XXXXXX X. XXXXXX,
By______________________________________
Name:
Title:
XXXXX X. XXXX,
By______________________________________
Name:
Title:
XXXXXX X. XXXXXXX,
By______________________________________
Name:
Title:
XXXXXXXX STREET PARTNERS II,
By______________________________________
Name:
Title:
XXXXXX X. XXXXX,
By______________________________________
Name:
Title:
27
XXXX-XXXXXX X. XXXXXXX TRUST,
By______________________________________
Name:
Title:
XXXXXXX XXXXXXXXXXX,
By______________________________________
Name:
Title:
ASC INCORPORATED,
By______________________________________
Name:
Title:
28
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By____________________________________
Name:
Title:
Acting on behalf of itself and as the
Representative of the several Underwriters.
29
SCHEDULE A
NUMBER OF
NUMBER OF FIRM OPTIONAL
SECURITIES SECURITIES TO
SELLING STOCKHOLDER ADDRESS TO BE SOLD BE SOLD
------------------- ------- ---------- -------
Onex American Holdings II LLC
Xxxxxxx Executive Investco LLC
CVS Executive Investco LLC
Onex DHC LLC
Trim Systems Executive Investco LLC
Trim Systems Executive Investco II LLC
Xxxxxxx Partners LP
1170821 Ontario Inc.
1170809 Ontario Inc.
1170812 Ontario Inc.
Kyzalea Company
1170819 Ontario Inc.
1170698 Ontario Inc.
1301449 Ontario Inc.
1352536 Ontario Inc.
1376653 Ontario Inc.
1352537 Ontario Inc.
Xxx Xxxxxxxxx
3-G Investments Limited
Xxxxx Xxxxx
Xxxxx Xxxx
J.W.E. Xxxxx
Xxxxxx Xxxxxxxx
1299039 Ontario Inc.
2668921 Manitoba Ltd.
Onex Advisor III LLC
CVS Partners, LP
3062601 Nova Scotia Company
Hidden Creek Industries
30
NUMBER OF
NUMBER OF FIRM OPTIONAL
SECURITIES SECURITIES TO
SELLING STOCKHOLDER ADDRESS TO BE SOLD BE SOLD
------------------- ------- ---------- -------
AMON Canadian Investments Ltd.
MHON Canadian Investments Ltd.
Xxxxx Capital Partners III X.X.
Xxxxx Capital Partners II L.P.
BCP III Affiliates Fund L.P.
BCP III Special Affiliates L.P.
BCP II Affiliates Fund L.P.
Norwest Equity Partners VII L.P.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
X.X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxxxx Street Partners II
Xxxxxx X. Xxxxx
Xxxx-Xxxxxx X. Xxxxxxx Trust
Xxxxxxx Xxxxxxxxxxx
ASC Incorporated
-------------- -------------
============== =============
Total.................................
31
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC...............................................
Xxxxxx Brothers Inc..........................................................
Xxxxxx X. Xxxxx & Co. Incorporated...........................................
RBC Capital Markets Corporation..............................................
----------
Total............................................. ==========
SCHEDULE C
SUBSIDIARIES OF COMMERCIAL VEHICLE GROUP, INC.
Significant
Entity Jurisdiction Subsidiary
----------------------------------------------------------------------------------
1. Trim Systems, Inc. Delaware Yes
----------------------------------------------------------------------------------
2. Trim Systems Operating Corp. Delaware
----------------------------------------------------------------------------------
3. Trim Systems LLC Delaware Yes
----------------------------------------------------------------------------------
4. Tempress, Inc. Washington Yes
----------------------------------------------------------------------------------
5. CVG International Holdings Limited Barbados
----------------------------------------------------------------------------------
6. CVG (Shanghai), Co. LTD. China
----------------------------------------------------------------------------------
7. CVS Holdings Limited United Kingdom Yes
----------------------------------------------------------------------------------
8. Commercial Vehicle Systems Limited United Kingdom Yes
----------------------------------------------------------------------------------
9. Xxxxxxx Limited United Kingdom Yes
----------------------------------------------------------------------------------
10. Xxxxxxx Investments Limited United Kingdom
----------------------------------------------------------------------------------
11. KAB Seating LLC United Kingdom
----------------------------------------------------------------------------------
12. Xxxxxxx International Limited United Kingdom Yes
----------------------------------------------------------------------------------
13. KAB Seating, AB Sweden
----------------------------------------------------------------------------------
14. KAB Seating, Pty Australia
----------------------------------------------------------------------------------
15. KAB Seating, S.A. Belgium
----------------------------------------------------------------------------------
16. National Seating Company Delaware Yes
----------------------------------------------------------------------------------
17. KAB Seating Limited United Kingdom Yes
----------------------------------------------------------------------------------
18. X. Xxxxxx Pressings Limited United Kingdom
----------------------------------------------------------------------------------
19. Wilton & Co. Pressings Limited United Kingdom
----------------------------------------------------------------------------------
20. Xxxxxxx Specialist Engineering Limited United Kingdom
----------------------------------------------------------------------------------
21. Winston Cable Limited United Kingdom
----------------------------------------------------------------------------------
22. JMH Limited United Kingdom
----------------------------------------------------------------------------------
23. KAB Tooling Limited United Kingdom
----------------------------------------------------------------------------------
24. Xxxxxxx Europe United Kingdom
----------------------------------------------------------------------------------
25. The C&P Jig & Tool Limited United Kingdom
----------------------------------------------------------------------------------
26. BB Seating Limited United Kingdom
----------------------------------------------------------------------------------
27. Xxxxxx & Xxxxxxx Limited United Kingdom
----------------------------------------------------------------------------------
28. AJW Holdings Limited United Kingdom
----------------------------------------------------------------------------------
29. KAB Industries Limited United Kingdom
----------------------------------------------------------------------------------
30. Corvus Suspension Products Limited United Kingdom
----------------------------------------------------------------------------------
31. KAB Pressings Limited United Kingdom
----------------------------------------------------------------------------------
32 KAB Components Limited United Kingdom
----------------------------------------------------------------------------------
33. XX Xxxxxxxx Small Pressings Limited United Kingdom
----------------------------------------------------------------------------------
34. Xxxxxxx Vehicle Components Limited United Kingdom
----------------------------------------------------------------------------------
35. Inbark Limited United Kingdom
----------------------------------------------------------------------------------
36. KAB Engineering Limited United Kingdom
----------------------------------------------------------------------------------
37. CVS Holdings, Inc. Delaware Yes
----------------------------------------------------------------------------------
38. Commercial Vehicle Systems, Inc. Delaware Yes
----------------------------------------------------------------------------------
SCHEDULE D-1
Xxxxx Capital Partners III X.X.
Xxxxx Capital Partners II L.P.
BCP III Affiliates Fund L.P.
BCP III Special Affiliates L.P.
BCP II Affiliates Fund L.P.
Norwest Equity Partners VII L.P.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
X.X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxxxx Street Partners II
Xxxxxx X. Xxxxx
Xxxx-Xxxxxx X. Xxxxxxx Trust
Xxxxxxx Xxxxxxxxxxx
ASC Incorporated
Hidden Creek Industries
SCHEDULE D-2
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxx
X.X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxxxxx Street Partners II
[Xxxxxx X. Xxxxx]
[Xxxx-Xxxxxx X. Xxxxxxx Trust]
[Xxxxxxx Xxxxxxxxxxx]
Hidden Creek Industries
SCHEDULE D-3
Onex American Holdings II LLC
Xxxxxxx Executive Investco LLC
CVS Executive Investco LLC
Onex DHC LLC
Trim Systems Executive Investco LLC
Trim Systems Executive Investco II LLC
Xxxxxxx Partners LP
1170821 Ontario Inc.
1170809 Ontario Inc.
1170812 Ontario Inc.
Kyzalea Company
1170819 Ontario Inc.
1170698 Ontario Inc.
1301449 Ontario Inc.
1352536 Ontario Inc.
1376653 Ontario Inc.
1352537 Ontario Inc.
Xxx Xxxxxxxxx
3-G Investments Limited
Xxxxx Xxxxx
Xxxxx Xxxx
J.W.E. Xxxxx
Xxxxxx Xxxxxxxx
1299039 Ontario Inc.
2668921 Manitoba Ltd
Onex Advisor III LLC
CVS Partners, LP
3062601 Nova Scotia Company
AMON Canadian Investments Ltd.
MHON Canadian Investments Ltd.
Xxxxx Capital Partners III X.X.
Xxxxx Capital Partners II L.P.
BCP III Affiliates Fund L.P.
BCP III Special Affiliates L.P.
BCP II Affiliates Fund L.P.
Norwest Equity Partners VII L.P.
EXHIBIT A
[OPINION OF XXXXXXXX & XXXXX LLP]
EXHIBIT B
[OPINION OF XXXXXXXX & XXXXX LLP]
EXHIBIT C
[OPINION OF XXXX XXXXXXX LLP]
EXHIBIT D
[CERTIFICATE OF CHIEF FINANCIAL OFFICER]
EXHIBIT E
[ FORM OF LOCK-UP AGREEMENT]
Commercial Vehicle Group, Inc.
0000 Xxxx Xxxxxx Xxx
Xxx Xxxxxx, Xxxx 00000
Credit Suisse First Boston LLC
Xxxxxx Brothers Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
(collectively, the "UNDERWRITERS")
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting Agreement
(the "UNDERWRITING AGREEMENT"), pursuant to which an offering (the "OFFERING")
will be made that is intended to result in the establishment of a public market
for the common stock, par value $0.01 per share (the "SECURITIES") of Commercial
Vehicle Group, Inc., and any successor (by merger or otherwise) thereto (the
"COMPANY"), the undersigned hereby agrees that during the period specified in
the following paragraph (the "LOCK-UP PERIOD"), the undersigned will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any shares of Securities or securities convertible into or exchangeable or
exercisable for any shares of Securities, enter into a transaction which would
have the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Securities, whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of Credit Suisse
First Boston LLC ("CSFB"). In addition, the undersigned agrees that, without the
prior written consent of CSFB, it will not, during the Lock-Up Period, make any
demand for, or exercise any right with respect to, the registration of any
Securities or any security convertible into or exercisable or exchangeable for
the Securities except in connection with the Offering.
The initial Lock-Up Period will commence on the date of this Lock-Up
Agreement and continue for 180 days after the public offering date set forth on
the final prospectus used to sell the Securities (the "Public Offering Date")
pursuant to the Underwriting Agreement; provided, however, that if (1) during
the last 17 days of the initial Lock-Up Period, the Company releases earnings
results or material news or a material event relating to the Company occurs
(and, in the case of material news or material event, CSFB gives the notice
thereof to [ ] or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in each case the
Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of release of the earnings results (which in the case of
clause (2) must occur prior to the expiration of such 16-day period) or the
occurrence of the material news or material event, as applicable, unless CSFB
waives, in writing, such extension.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market or in the issuer directed share program, and
any Securities sold in the Offering pursuant to the Underwriting Agreement, will
not be subject to this Agreement. A transfer of Securities (or other transaction
of the types restricted in the first paragraph of this letter) to a family
member, trust, affiliate of the undersigned, or a director, officer or employee
of the
undersigned or of an affiliate of the undersigned may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement. In
addition, the undersigned may transfer Securities or securities convertible into
or exchangeable or exercisable for Securities pursuant to a sale of 100% of the
outstanding Securities (including, without limitation, in connection with a
tender offer for such Securities or by way of merger of the Company with another
person) to a third party or group of third parties that are not affiliates of
the Company (and may make offers or enter into contracts with respect to such a
transfer), provided that unless the third party or group is acquiring 100% of
the outstanding Securities of the Company in a single transaction or concurrent
transactions, the third party or group of third parties agrees in writing to be
bound by the restrictions set forth herein until such time as such third party
or group of third parties has acquired 100% of the outstanding Securities of the
Company.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void (a) if the Underwriting Agreement or the
obligation of the Underwriters to purchase Securities thereunder is terminated,
(b) if the registration statement filed with the SEC in respect of the Offering
is withdrawn, (c) if the closing of the Offering pursuant to the Underwriting
Agreement shall not have occurred on or before October 31, 2004 or (d) if, prior
to the undersigned's execution and delivery of the Underwriting Agreement, the
undersigned notifies CSFB in writing at its address set forth above (Attention:
Transactions Advisory Group) that it does not then intend to pursue an offering
of the Securities through CSFB as an underwriter. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Very truly yours,
By: _____________________________
Name: ___________________________
